Chiefs can’t renegotiate sold lands - Justice Osei-Tutu

A change of a chief as a result of death, abdication or destoolment does not affect the status of land sale transactions existing within the jurisdiction before a new chief ascends the throne.

A Justice of the Court of Appeal, Justice Alexander Osei-Tutu, said it was, therefore, unlawful for a new chief to direct that land transactions concluded under a predecessor chief be regularised under new terms merely on the basis of the new chief ascending the throne.

“Our chiefs must refrain from harassing people who have bought lands.

It is unlawful for a new chief to say that he does not recognise the sale of land under a previous chief, and tell the grantees to regularise their lands or else the lands will be taken from them,” he said.

Justice Osei-Tutu explained that such practices by chiefs had been proscribed by Section 183 of the Land Act, 2020 (Act 1036), which further extended to heads of families and clans.

Section 183 of Act 1036 stipulates that: “a change of a person authorised to make a grant of a stool or skin, or clan, or family land shall not affect the grant of a stool, skin, clan or family land made by that person prior to the change”.

Training programme

Justice Osei-Tutu made this known when he delivered a lecture at a training programme for lawyers of the National House of Chiefs and the various regional houses of chiefs.

The lecture was on the topic: “Chiefs and Customary Land Administration: Legal and Fiduciary Duties”.

The two-day training programme was organised by the Ministry of Local Government, Chieftaincy and Religious Affairs, in collaboration with the Judicial Training Institute and the Institute of Local Government Studies.

Other facilitators at the training programme included Justice Stephen Alan Brobbey, a retired Justice of the Supreme Court; Justices Gabriel Pwamang, Kweku T. Ackaah Boafo, Philip Bright Mensah, all Justices of the Supreme Court; and Justice Eric Kyei Baffour of the Court of Appeal.

Accountability of chiefs

Justice Osei-Tutu observed that in spite of the various provisions in Act 1036 to ensure accountability of chiefs in the sale of lands, lapses in the Act had made it virtually impossible to enforce such provisions.

He said although Act 1036 criminalised the lack of accountability on the part of a chief in the sale of lands, there was a lack of clarity on the ingredients of such an offence.

Such challenge, he said, had made the provisions on accountability of chiefs “much ado about nothing”.

Under Section 13 (2) of Act 1036, a chief, clan head, family head or anyone in charge of the management of stool, family or clan land holds a fiduciary duty to subjects of the stool or members of the family or clan, and must be accountable in transactions relating to the land.

Section 13 (3) of Act 1036 provides that a chief, family head or clan head or any person in charge of the management of stool, skin, clan or family land shall be “transparent, open, fair and impartial in making decisions affecting the specified land”, while Section 13 (4) states that a fiduciary who contravenes sub-section (2) commits an offence and is liable on conviction to a fine of not less than GH¢60,000 and not more than GH¢120,000 or to a term of imprisonment not less than five years, and not more than 10 years, or both.

However, Justice Osei-Tutu explained that the ingredients of the offence were clearly stated in Section 13(3), although Section 13(4), which created the offence, rather made reference to sub-section (2), with the lawmaker failing to include sub-section (3) in the offence.

“Article 19 (11) of the Constitution states that an offence must be clearly defined before a person charged under that offence can be convicted,” he said.

“The offence is created in Section 13(4) of Act 1036, which makes reference to sub-section (2); meanwhile, the ingredients are under sub-section (3). How can a chief, therefore, be convicted of such an offence?” Justice Osei-Tutu queried. 

Responsibility

Speaking at the closing ceremony of the training programme in Accra last Friday, the Minister of Local Government, Chieftaincy and Religious Affairs, Ahmed Ibrahim, urged chiefs to take action to preserve the sanctity of the chieftaincy institution.

“Our laws are clear on who qualifies to be a chief. We must protect such a revered institution or else there would be dire consequences,” he said.

For his part, the Director of the Judicial Training Institute, Justice I.O. Tanko Amadu, who is also a Justice of the Supreme Court, called on the lawyers for the various houses of chiefs to work to promote public interest and not their personal interests.

“You have to be impartial in your dealings because just like judges, one day, we will all account to a higher authority,” he said.

Writer’s email; emma.hawkson@graphic.com.gh